1)

HOW CAN A MARRIED WOMAN ACQUIRE PROPERTY? [Kinyan: Nesu'ah]

(a)

GEMARA

1.

(Mishnah): If a woman accepted Nezirus and designated an animal for her Korban, and her husband annulled her Nezirus:

i.

If it was his animal, it may graze with the flock (it is Chulin). If it was her animal, if it was a Chatas, it must die...

2.

Question: How did she acquire an animal? A husband receives whatever his wife acquires!

3.

Answer #1 (Rav Papa): She ate less than he is obligated to feed her, and saved the difference.

4.

Answer #2: Someone else gave her an animal on condition that her husband has no rights to it.

5.

Kesuvos 65b (Beraisa): Excess food allotted to a wife belongs to the husband.

6.

Bava Kama 89a (Beraisa): Two Edim (witnesses) testified that Reuven divorced his wife and paid her Kesuvah, and she is still living with him like his wife. The Edim were found to be Zomemim (they were not there to witness this). They do not pay to her the full value of her Kesuvah. They pay only the Tovas Hana'ah (the amount that someone would pay for the rights to collect her Kesuvah if she is divorced or widowed).

7.

(Abaye): When a woman sells the Tovas Hana'ah of her Kesuvah, the money is entirely hers.

i.

If it belonged to her husband, why would the Edim Zomemim pay her? Even had she sold it, her husband would get the money!

8.

Rejection (Rav Shalman): Really, he gets the money. Edim Zomemim pay her because she prefers that her husband have more money to spend.

9.

(Rava): The Halachah is, when a woman sells the Tovas Hana'ah of her Kesuvah, the money is entirely hers. Her husband does not get the Peros (profits made with the money).

10.

This is because Chachamim enacted that a husband gets the Peros, but not the Peros of the Peros. (The Tovas Hana'ah is like Peros of her Kesuvah.)

11.

Gitin 77a (Mishnah): If one threw a Get to his wife when she was in her house or courtyard, it is valid;

12.

Question: A man acquires his wife's property. It is like his yard!

13.

Answer (R. Yanai): The case is, he wrote to her during Eirusin (before Nisu'in) 'I have no claims to your property.'

14.

Nedarim 88a (Mishnah): If one vowed not to benefit his son-in-law, he can give money to his daughter and say 'this gift is on condition that your husband has no Reshus over it. It is given only for you to buy food with it and to eat the food.'

(b)

RISHONIM

1.

Rambam (Hilchos Ishus 18:4): When heirs feed the widow, excess food is theirs.

i.

Rebuttal (Ra'avad): I used to think so, until I saw the Yerushalmi which says that a husband, who gets her Metzi'os (Hefker things that she finds), gets her excess food. A widow keeps her Metzi'os, and also her excess food.

2.

Rambam (22:27): If a woman sold her Kesuvah for Tovas Hana'ah, she gets the money and he does not eat the Peros.

3.

Rosh (Kesuvos 4:10): The Gemara in Bava Basra and Gitin had difficulty finding how a married woman could own a Chatzer herself. It was forced to answer that he waived his rights to her property during Eirusin. This shows that she cannot say 'I forfeit rights to be redeemed, and I will keep my Peros.'

i.

Ran (Nedarim 88a DH Masnisin): The Mishnah specifies money, for if he gave to her food, he need not stipulate, for her husband does not acquire it. A Mishnah (38a) teaches that one may feed the wife of a Mudar Hana'ah, and no stipulation was required. This is because he feeds her in place of her husband. Even if her husband gave her the required rations and she skimped and had leftovers, her husband has no rights to the leftovers, like it says in Nazir (24b).

ii.

Question: In Kesuvos (65b), it says that leftover food belongs to the husband. In Nazir, it says that it belongs to her!

iii.

Answer (Tosfos Nazir 24b DH she'Kimtzah): When he told her to feed herself from her earnings and she agreed and there was leftover, it is hers. Rabbeinu Meir answers that when they fixed a sum of money for her food and food became cheaper, the savings are his. When she did not eat the full ration, the savings are hers.

(c)

POSKIM

1.

Shulchan Aruch (EH 85:7): If a woman received property after Nisu'in, through inheritance, a gift or her share of payment for embarrassment and blemish from one who injured her, it becomes Nichsei Melug, like property she brought into the marriage. If she sold her Kesuvah or dowry, her husband does not eat the Peros.

i.

Chelkas Mechokek (18): When her husband has no Peros, e.g. she sold her Kesuvah, she can spend the money l'Chatchilah.

ii.

Support (Beis Shmuel 16): The Gemara (Bava Kama 89a) suggested that if a married woman wounded someone, she should sell her Kesuvah to pay for it. If her husband has Peros rights on the money she receives, she could not give it to the one she hurt!

iii.

Mishneh l'Melech (Hilchos Ishus 21:4): If a woman is a merchant and finances her house, the Maharit (CM 67) was unsure whether or not her husband acquires all her earnings. Why did he ignore the Ra'avad (brought in Tur EH 95)? The Ra'avad says that if a widow improved land, even though the heirs feed her and get her earnings, this applies only to work with a quota, e.g. spinning or weaving. It is not normal for her to do other work. Since they could not force her, she keeps the earnings. The Rashba agrees.

iv.

Aruch ha'Shulchan (YD 248:12): The Yam Shel Shlomo (Bava Kama 10:59) says that nowadays we may accept a large gift to Tzedakah from women, for they are like overseers over their husbands.

v.

Note: The Aruch ha'Shulchan suggests that the Yam Shel Shlomo holds like the Ra'avad. However, the Yam Shel Shlomo says that we assume that her husband would agree, but if he protests, we do not accept even a small amount. This suggests that she does not keep her earnings!

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